Monday, April 30, 2012

on routine patrol in downtown Seal
Beach when he noticed [James] Kenney at an intersection. Because Kenney did not
have a license plate on the front of his pickup truck, Gonshak decided to stop
him for that infraction. . . . [B]efore doing so, [he] ran Kenney's rear
license plate number through his dispatcher and discovered there might be a
warrant out for Kenney's arrest.

While the dispatcher was looking into
that issue, Gonshak pulled Kenney over and contacted him in the truck. After
checking Kenney's driver's license, Gonshak asked him to step outside, so he
could talk to him about the possible warrant. Kenney agreed and walked to the
rear of his truck, while his front seat passenger, Adam Cirillo, stayed in the
vehicle. . . .

Gonshak asked Kenney if there were any
drugs or weapons inside his truck, and he said there was Oxycontin in the
center console. Kenney also said he had just gotten out of rehab for his
addiction to Oxycontin and had received a stomach implant to help him in his
recovery. When asked if he had a prescription for the Oxycontin in his truck,
Kenney said he did, but he did not know where it was.

People v. Kenney,
2012 WL 1207206 (California Court of Appeals 2012).

While Gonshak Kenny were having this conversation, Gonshak heard
from the dispatcher that

Kenney did in fact have an outstanding
warrant, arising from a traffic matter. . . . Gonshak arrested Kenney on the warrant
and seized $890 from his back pocket. Gonshak then turned . . . to . . .
Cirillo. Upon speaking with Cirillo, Gonshak saw he appeared to be under the
influence of a controlled substance. He had Cirillo exit the truck, placed him
under arrest, and sat him down on the curb next to Kenney. While a backup
officer watched the two arrestees, Gonshak proceeded to search the truck.

People v. Kenney,
supra.

In the “center console area” of the truck, Gonshak found

three prescription pill bottles in
Kenney's name. One of the bottles was empty, one contained a few Xanax pills,
and the other had 23 tablets of Oxycontin. Gonshak also found Kenney's cell
phone on the driver's seat. Upon examining the phone, Gonshak discovered
several text messages showing Kenney was involved in the sale of `beans’ and
`bars,’ which are slang terms for Oxycontin and Xanax.

People v. Kenney,
supra.

Based on what Gonshak found (and observed), Kenney was
indicted on “drug charges” (the opinion doesn’t say exactly what they were) and
moved to suppress the evidence found in his truck. People
v. Kenney, supra. At the hearing the
trial judge held on Kenney’s motion to suppress, his lawyer conceded that
Kenney was

lawfully stopped for the traffic
violation and arrested on the outstanding warrant. He also conceded Gonshak was
lawfully entitled to search Kenney incident to arrest and seize the money in
his back pocket. However, defense counsel argued the arrest did not give
Gonshak the right to search Kenney's truck, seize his pills and cell phone, and
read his text messages.

People v. Kenney,
supra.

The prosecutor, in response, argued that “irrespective of
the search-incident-to-arrest rule, Kenney's actions were
justified under the `automobile exception’ to the warrant requirement, which
allows the police to search a vehicle if there is probable cause it contains
evidence of a crime.” People v. Kenney, supra. The opinion notes that the trial judge denied
Kenney’s motion to suppress but “was not entirely clear in terms of explaining
the basis for his ruling.” People v. Kenney, supra. We’ll get to the merits of those issues in a
moment; first I have to finish outlining how the case came before the Court of
Appeals.

After the case was bound over for trial, Kenney “renewed his
motion to suppress” pursuant to California Penal Code § 1538.5(i), which
triggered another hearing. People v. Kenney, supra. Gonshak testified in more detail at this
hearing, explaining that when he approached Cirillo in the passenger seat, he
noticed Cirillo’s “pupils were constricted, his speech was impaired, and there
was a white pasty substance around his mouth”.
People v. Kenney, supra. Cirillo also admitted “he had taken oxycodone
and used marijuana that day, and he had previously been addicted to Oxycontin.” People
v. Kenney, supra. Based on that, Gonshak
arrested Cirillo for “for being under the influence of narcotics and cannabis.” People
v. Kenney, supra.

Gonshak also testified that when he found Kenney's cell
phone “in close proximity to the pills, he began to suspect Kenney might be
involved in drug sales activity.” People v. Kenney, supra. Based
on his experience investigating narcotics, Gonshak felt the phone “was a `very
important’ piece of evidence bearing on that issue”, so he read the messages on
the phone “to shed light on whether or not Kenney was dealing drugs.” People
v. Kenney, supra. Gonshak said he did
not seek a warrant to search the phone “because it would have taken a
considerable amount of time, and he did not believe a warrant was necessary.” People
v. Kenney, supra.

The prosecution and defense then basically renewed the
arguments they had made at the original motion to suppress hearing, though now the
prosecution seems to have relied more on the “automobile exception” than the
“search incident” exception to justify the search. People
v. Kenney, supra. (More on those below.) The trial judge
again denied Kenney’s motion to suppress, he “pled guilty to the charges and
was based on probation”, after which he appealed. People
v. Kenney, supra.

As Wikipedia notes, and as I have explained in earlier
posts, the 4th Amendment creates a right to be free from
“unreasonable” searches and seizures. As
Wikipedia notes, and as I have noted in earlier posts, a “search” violates a
reasonable expectation of privacy under Katz
v. U.S., 389 U.S. 347 (1967), i.e., officers explore a place or a thing
which I subjectively believe is “private” and society agrees with me. As Wikipedia notes and as I have noted in
earlier posts, a “seizure” of a person interferes with that person’s freedom of
movement; arresting someone is clearly a seizure. And, finally, as Wikipedia explains,
officers need a warrant – or an exception to the 4th Amendment’s
warrant requirement – to “search” and/or “seize.”

As I’ve noted in earlier posts, search incident to arrest is
an exception to the 4th Amendment’s warrant requirement. As Wikipedia notes, a search conducted
pursuant to this exception is “limited to only the person arrested and the area
immediately surrounding the person in which the person may gain possession of a
weapon, in some way effect an escape, or destroy or hide evidence.” The search
incident exception applies automatically once someone has been arrested, but to
be valid, a search incident must stay within the scope of the exception.

Kenney argued that Gonshak’s search of his truck and cell
phone did not stay within the scope of that exception and therefore violated the
4th Amendment. People v. Kenney, supra. He relied on the Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332 (2009), in
which the Court held that officers can “search a vehicle incident to a
recent occupant's arrest only if the arrestee is within reaching distance of
the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest.” The resolution of this issue depended on the
basis of the (alleged) search incident to arrest.

Kenney argued that if it was based on his arrest for the
outstanding warrant – which was all he had been arrested for – then it was
invalid because (i) he was not within reaching distance of the passenger
compartment of his truck when Gonshak arrested him on the warrant and/or (ii)
there was no evidence suggesting his “truck contained evidence relating to the
traffic matter” which what the arrest was for.
People v. Kenney, supra. The California Attorney General, who
represented the prosecution, conceded this point. People
v. Kenney, supra.

The Court of Appeals did not agree. It found that the search incident exception
justified Gonshak’s search of Kenney’s vehicle “because Kenney was already in
lawful custody per the arrest warrant, and because there was probable cause to
arrest him for illegal drug activity” based on what he had seen and heard in
the course of making that arrest. People v. Kenney, supra. As the court noted, by the time Gonshak
searched the truck, Kenney had

already told him: 1) there was
Oxycontin in the vehicle; 2) he did not know where his prescription was; 3) he
was a recovering from Oxycontin or heroin addiction; and 4) he had a stomach
implant that was designed to counter the effects of any narcotics he ingested.
Based on these statements, it was reasonable to infer Kenney was not supposed
to have Oxycontin in his possession.

People v. Kenney,
supra.

The Court of Appeals found (i) that this gave Gonshak
probable cause to have arrested Kenney for drug possession and/or “activity” at
that point and (ii) that because Kenney “was already in lawful custody per the
arrest warrant, and because there was probable cause to arrest him for illegal
drug activity, it matters not that no second arrest occurred”. People
v. Kenney, supra. In other words, the court said Gonshak didn’t have to
arrest Kenney a second time – on drug charges – to be able to conduct a search
incident of his truck and its contents. People v. Kenney, supra. “A search
conducted when there is probable cause to arrest may be carried out before the
person is actually arrested for the suspected offense.” People
v. Kenney, supra.

The Court of Appeals also noted that another exception – the
“automobile exception” also justified the search of the truck. People
v. Kenney, supra. As Wikipedia notes, this exception lets an officer “search
a vehicle without a warrant as long as he or she has probable
cause to believe that evidence or contraband is located in the vehicle.” People
v. Kenney, supra. As noted above,
the court found that Gonshak would have had probable cause to arrest Kenney a
second time on drug charges, which meant Gonshak had probable cause to believe
there were drugs in the vehicle, which meant he could search the vehicle for
drugs pursuant to the automobile exception.
People v. Kenney, supra.

The Court of Appeals applied this section to reject Kenney’s
argument that, aside from anything else, the 4th Amendment did not
justify Gonshak “look[ing] inside Kenney's phone and read[ing] his text
messages for further evidence of drug activity.” People
v. Kenney, supra. It found that by the time Gonshak had seized
the cell phone, he already had probable cause to believe Kenney “was involved
in illegal drug activity”, which meant that under the automobile exception, “he
not only had the right to search Kenney's truck, he also had the right to
search any of its contents that could conceal evidence of the
suspected crime.” People v. Kenney, supra (emphasis in the original). The court found this would “logically
include the cell phone, because, as Gonshak knew from his police experience,
cell phones are commonly used by drug dealers to conduct illegal drug activity.” People
v. Kenney, supra.

It therefore rejected Kenney’s argument that “because cell
phones are capable of storing a lot of personal information about the owner,
they should be exempt from the general rule authorizing the warrantless search
of a car's contents based on probable cause alone.” People
v. Kenney, supra. It noted that “in discussing that rule in a case
involving the warrantless search of a cell phone, the California Supreme Court
recently observed that `whether a particular container may be searched without
a warrant does not depend on the character of the container’ and that the ‘”scope
of a warrantless search of an automobile thus is not defined by the nature of
the container in which the contraband is secreted.”’” People
v. Kenney, supra (quoting People v.
Diaz, 51 Cal.4th 84 (2011)).

The Court of Appeals also applied the rationale noted above
to the search of Kenney’s cell phone, i.e., that Gonshak had probable cause to
arrest Kenney for drug “activity” before he read the text messages, which meant
that reading the messages was a “search” that fell within the scope of the
search incident exception. People v. Kenney, supra.

So the court held that Kenney’s motions to suppress were
properly denied and affirmed his conviction and sentence. People
v. Kenney, supra.

Friday, April 27, 2012

As Wikipedia notes, the 4th amendment requires
that law enforcement officers

receive written permission from a .
. . magistrate, to lawfully search and seize evidence while
investigating criminal activity. A court grants permission by issuing
a writ known as a warrant. A search or seizure is generally
unreasonable and unconstitutional, if conducted without a valid warrant. . . .

The issue in U.S. v.
Burgard, __ F.3d __, 2012 WL 1071706 (U.S. Court of Appeals for the 7thCircuit 2012) wasn’t whether the
officers who searched Joshua Burgard’s cell phone got a warrant before they
conducted the search. It was whether
they waited to long to get the warrant.

The case began on Wednesday, January 6, 2010, when one of
Burgard’s friends

approached Sergeant Louis Wilson of the
Smithton, Illinois, Police Department. The friend told Wilson he had seen sexual
images of young girls (possibly aged 14 or younger) on Burgard's cell phone,
and that Burgard, 21 years old at the time, had bragged about having sex with
them. This friend agreed to serve as a confidential informant and text Wilson
later that night if he was with Burgard and Burgard had the phone.

The informant followed through with the
plan: that night, he texted Wilson that he and Burgard were driving together in
the informant's car. Wilson then stopped the informant's car and seized
Burgard's phone. Burgard voluntarily went to the police station where Wilson
entered the phone into evidence and gave Burgard a property receipt.

U.S. v. Burgard,
supra.

As the Wikipedia passage quoted above notes, warrants are
required to seize property as well as
to search it. In this case, the prosecution and defense
agreed that Sergeant Wilson needed a warrant to search Burgard’s cell phone,
but the Court of Appeals found he did not need a warrant to seize it:

In general, `seizures of personal
property are “unreasonable within the meaning of the Fourth Amendment . . .
unless . . . accomplished pursuant to a judicial warrant.”’ Illinois v.McArthur, 531 U.S. 326 (2001) (quoting U.S. v. Place, 462U.S. 696 (1983)). An officer may temporarily seize property without a warrant,
however, if she has `probable cause to believe that a container holds contraband
or evidence of a crime’ and `the exigencies of the circumstances demand it or
some other recognized exception to the warrant requirement is present.’ U.S. v.
Place, supra.

U.S. v. Burgard,
supra.

The Court of Appeals also pointed out, however, that

Even a permissible warrantless seizure,
such as the initial seizure here, must comply with the Fourth Amendment's
reasonableness requirement. Thus, the Supreme Court has held that after seizing
an item, police must obtain a search warrant within a reasonable period of
time. See, e.g., Segura v. U.S., 468 U.S. 796 (1984). . .

U.S. v. Burgard,
supra.

The “reasonableness” with which Wilson acted to obtain the
necessary warrant was the issue here because he

did not immediately apply for a state
search warrant. Instead, he wrote a report about the seizure and forwarded it
to Detective Mark Krug in nearby Collinsville, because Krug was assigned to
work part-time with the FBI's Cyber Crimes Task Force. Wilson and Krug worked
different shifts, however, and so Krug did not receive Wilson's report until
the next day.

After Krug read the report, he tried to contact
Wilson to learn more details, but again the shift differences got in the way
and the two were unable to speak until later that night. The next day, Friday,
January 8, Krug contacted the United States Attorney's Office to inform it that
he planned to draft a federal search warrant for the phone. An Assistant United
States Attorney (AUSA) told him to proceed with drafting the affidavit.

Some time that same day, an armed
robbery occurred in Collinsville. Because the armed robbery was more pressing,
Krug put the cell phone warrant aside and worked on the armed robbery
investigation. . . . Krug may have continued to work on the robbery on
Saturday, or he may have taken that day off. But by Sunday, he was able to
return to Burgard's case and draft the affidavit.

On Monday morning, January 11, he sent
his draft to the AUSA and the two went back and forth making edits. The next
day, the AUSA finally presented a completed warrant application to the federal
magistrate judge, who signed the warrant that day. Krug promptly searched the
phone pursuant to the warrant and found numerous sexually explicit images of
young girls.

U.S. v. Burgard,
supra. (For the process involved in
obtaining a federal search warrant, see Rule 41(d) of the Federal Rules of
Criminal Procedure.)

Burgard was charged with and pled guilty to two counts of
receiving child pornography in violation of 18 U.S. Code § 2252(a)(2) and was
sentenced to “210 months’ imprisonment and 15 years of supervised
release.” U.S. v. Burgard, supra. (According
to Burgard’s brief on appeal, the charges were based on law enforcement
interviews with two young girls, each of whom said she sent “naked images of
herself to Burgard.” Brief of Appellee, U.S. v. Burgard, 2011 WL 2604030.)

On appeal, he claimed the district court judge erred in
denying his motion to suppress the photographs found on his phone because “the
police tarried too long before obtaining the warrant.” U.S.
v. Burgard, supra. In other words,
he argued that because the officers did not obtain the warrant in a
“reasonable” period of time, the search violated the 4th Amendment,
which meant the evidence should be suppressed.
U.S. v. Burgard, supra.

In analyzing the parties’ arguments on this issue, the Court
of Appeals noted, first, that

[t]here is unfortunately no bright line
past which a delay becomes unreasonable. Instead, the Supreme Court has
dictated that courts must assess the reasonableness of a seizure by weighing `the
nature and quality of the intrusion on the individual's 4th Amendment interests
against the importance of the governmental interests alleged to justify the
intrusion.’ U.S. v. Place, supra.

U.S. v. Burgard,
supra.

The court found that on the individual’s “side of this
balance,” the critical question

relates to any possessory interest in
the seized object, not to privacy. . . . `A seizure affects only the person's
possessory interests; a search affects a person's privacy interests.’ Segura
v. U.S., supra. The longer the
police take to seek a warrant, the greater the infringement on the person's
possessory interest will be. . . . But unnecessary delays also undermine the
criminal justice process in a more general way: they prevent the judiciary from
promptly evaluating and correcting improper seizures.

U.S. v. Burgard,
supra.

The Court of Appeals explained that on “the state’s side” of
this equation,

a key factor in our analysis is the
strength of the state's basis for the seizure. The state has a stronger
interest in seizures made on the basis of probable cause than in those resting
only on reasonable suspicion. All else being equal, the Fourth Amendment will
tolerate greater delays after probable-cause seizures.

U.S. v. Burgard,
supra. It also noted that in
balancing these “competing interests”, courts must also

`take into account whether the police
diligently pursue[d] their investigation.’ U.S.
v. Place, supra. When police act
with diligence, courts can have greater confidence that the police interest is
legitimate and that the intrusion is no greater than reasonably
necessary. Illinois v. McArthur,
supra. When police neglect to seek a warrant without any good explanation
for that delay, it appears that the state is indifferent to searching the item
and the intrusion on an individual's possessory interest is less likely to be
justifiable.

U.S. v. Burgard,
supra.

The Court of Appeals found, after applying these standards,
that it could not “say that the six-day delay here was so long that the seizure
was unreasonable.” U.S. v. Burgard, supra. It
“acknowledge[d]} that Burgard “had a strong interest in possessing his cell
phone” since, among other things, he did not abandon it or “relinquish it to a
third party” and “asserted his possessory interests over the phone by” going to
the police station and obtaining “a property receipt, which would help him
obtain the phone's return.” U.S. v.
Burgard, supra.

But it also found that “[o]n the other side of the equation,
“law enforcement's interests were also strong.”
U.S. v. Burgard, supra.
Burgard “conceded that police had probable cause to believe that the phone
would contain evidence of a crime.” U.S. v. Burgard, supra. And the court
tended to agree with Burgard’s argument that “that the officer was not diligent
because he should have been able to submit the warrant application more
quickly.” U.S. v. Burgard, supra.

It strikes us as implausible that an
officer with over 14 years of experience, like Krug, could not write a two-page
affidavit in fewer than six days, especially when the affidavit drew largely on
information that was contained in the initial report he received from Wilson.

The government argues that the delay
was attributable to Krug's lack of familiarity with federal cell-phone
warrants, but that explanation is not persuasive given the fact that the bulk
of the warrant appears to be boilerplate. And although it is true that the
detective's attention was diverted by a more serious robbery case, this did not
take place until Friday, after three days had already passed.

U.S. v. Burgard,
supra.

But the Court of Appeals also found that

police imperfection is not enough to
warrant reversal. . . . Krug may
theoretically have been able to work more quickly, but his delay was not the
result of complete abdication of his work or failure to `see any urgency’ as
in [U.S. v. Mitchell, 565 F.3d
1347 (U.S. Court of Appeals for the 11th Circuit 2009)].

He wanted to be sure he had all the
information he needed from the seizing officer and he wanted to consult with
the AUSA, all the while attending to his other law enforcement duties. We do
not want to discourage this sort of careful, attentive police work, even if it
appears to us that it could or should have moved more quickly.

U.S. v. Burgard,
supra.

The court ultimately found that the six-day delay in this case
was not

so unreasonable as to violate the
Constitution. Burgard argues that this outcome could `give authorities license
to retain seized property for long periods of time merely because they chose
not to devote a reasonable amount of resources and sufficient experienced
personnel’ to the task of obtaining warrants.

Given the fact-specific nature of these
inquiries, we think these fears are overblown. It remains possible that a
police department's failure to staff its offices adequately or to give officers
sufficient resources to process warrant applications could lead to unreasonable
delays. But this case does not present that sort of egregious abdication of
duties.

U.S. v. Burgard,
supra.

The Court of Appeals therefore affirmed “the district
court's denial of Burgard's suppression motion and thus the judgment of the
court.” U.S. v. Burgard, supra.

Willoughby was hired as a financial
specialist with Our Kids of Miami–Dade and Monroe Counties, an agency which works
with the Department of Children and Families to provide services to abused and
neglected children. Willoughby was provided access to Our Kids' and the
Department's confidential computer network after agreeing to her employer's
computer security requirements.

When she complained that the
employer-provided computer was too slow, Willoughby's personal laptop computer
was connected to Our Kids' computer network. Willoughby was told that she was
authorized to use her laptop to access her employer's network but that she
could not transfer any data from the employer's computer system into her
laptop.

Subsequently,
Willoughby's supervisor became aware that Willoughby had written a ten-page
email outlining perceived inefficiencies in Our Kids' operation. The supervisor
also suspected that Willoughby may have transferred confidential data to her
laptop.

The supervisor asked to search
Willoughby's computer, and Willoughby allowed the search. During the search,
however, when she saw that her personal files were being accessed, Willoughby
took back her laptop, stated that she was resigning, and left the premises.

Willoughby v. State,
supra.

Willoughby’s employer apparently went to the authorities,
because police “subsequently obtained a warrant to search [her] home and seized
the laptop.” Willoughby v. State, supra. When they examined the laptop, officers
discovered “Willoughby had emailed her employer's client trust fund master list
to her laptop.” Willoughby v. State, supra.

At her trial, Willoughby’s attorney moved for a judgment of
acquittal on both charges “based on the
State's failure to prove [she] was not authorized to access the computer
database.” Willoughby v. State, supra. The motion was presumably made pursuant to
Florida Rules of Criminal Procedure Rule 3.380(a), which provides that

[i]f, at the close of the evidence for
the state or at the close of all the evidence in the cause, the court is of the
opinion that the evidence is insufficient to warrant a conviction, it may, and
on the motion of the prosecuting attorney or the defendant shall, enter a
judgment of acquittal.

The judge who presided over Willoughby’s trial denied both
motions and the “jury returned a verdict of guilty as to both counts”, i.e., as
to both charges. Willoughby v. State, supra. He
put Willoughby on probation for four years, after which she appealed her
conviction to the Court of Appeals. Willoughby v. State, supra.

On appeal, Willoughby again relied on her argument that the
prosecution did not prove beyond a reasonable doubt that she was not authorized
to access her employer’s database. Willoughby v. State, supra.

The Court of Appeals began its analysis of this argument by
outlining the applicable law and the elements the prosecution was required to
prove in order to lawfully obtain a conviction:

[As] to count one, section
815.06(1)(a) of the Florida Statutes provides that anyone who `willfully,
knowingly, and without authorization . . . [a]ccesses or causes to be accessed
any computer, computer system, or computer network . . . commits an offense
against computer users.’

Subsection (6) of section
815.06 clarifies that the section `does not apply to any person who accesses
his or her employer's computer system . . . when acting within the scope of his
or her lawful employment.’

Therefore, to prove this offense, the
State must show that: (a) the defendant willfully, knowingly, and without
authorization, (b) accessed a computer system, and (c) if the employer's
system, that defendant acted outside the scope of his or her lawful employment.

Willoughby v. State,
supra.

After reviewing the evidence in the case, the Court of
Appeals agreed with Willoughby:

Here, the State failed to show that
Willoughby was not authorized to access Our Kids' computer network. The
evidence demonstrated that Willoughby's supervisor authorized Willoughby to
access Our Kids' computer network to perform her job.

The court therefore held that “because Willoughby received
authorization to access Our Kids' computer network, count one is reversed as
the State failed to prove that Willoughby's conduct violated section
815.06.” Willoughby v. State, supra.
So she succeeded in getting one of her convictions reversed. Willoughby
v. State, supra.

The Court of Appeals then took up Willoughby’s conviction on
Count II. Willoughby v. State, supra. This count charged her with (and she was
convicted of)

a violation of section
815.04(3)(b) of the Florida Statutes which states, `Whoever willfully,
knowingly, and without authorization discloses or takes data, programs, or
supporting documentation which is a trade secret ... or is confidential as
provided by law residing or existing internal or external to a computer,
computer system, or computer network commits an offense against intellectual
property.’

Willoughby v. State,
supra.

The Court of Appeals explained that “to prove this crime the
State must show that the defendant willfully, knowingly, and without
authorization disclosed or took a trade secret or confidential data from a
computer network.” Willoughby v. State, supra.
It found that in this instance, the prosecution had succeeded:

Here, the State proved that Willoughby
did not have authorization to download any data from her employer's computer
system to her personal laptop. The State also proved that Willoughby
transferred confidential data from her employer's system to her laptop. Thus,
the State proved all the elements of the crime.

Willoughby argues that she committed no
crime because she did not have a malicious purpose in transferring the
confidential information to her personal laptop, but rather, that her purpose
was to work from her home.

However, section 815.04(3)(b) does not include
a requirement that the defendant have a malicious purpose. Rather, the statute
requires only that the defendant's conduct be willful, knowing, and without
authorization.

Willoughby repeatedly was informed that
she could not obtain any of the data from her employer's network system.
Willoughby, nonetheless, emailed her employer's client trust fund master list
to her laptop. Because Willoughby transferred confidential files to her
personal computer without authorization, she was properly charged with the
taking of intellectual property.

Willoughby v. State,
supra.

The court therefore affirmed her conviction on Count II and
remanded the case to the trial judge, presumably for resentencing in light of
the reversal of her conviction on Count I, the unauthorized access charge. Willoughby
v. State, supra.

Monday, April 23, 2012

After being convicted of obstructing official business in
violation of Ohio Revised Code § 2921.31, Robert J. Young appealed, arguing
that the trial judge denied his motion to suppress certain evidence.State
v. Young, 2012 WL 1268667 (Ohio Court of Appeals 2012).Ohio Revised Code § 2921.31(A) provides as
follows:

No person, without privilege to do so
and with purpose to prevent, obstruct, or delay the performance by a public
official of any authorized act within the public official's official capacity,
shall do any act that hampers or impedes a public official in the performance
of the public official's lawful duties.

The case began on June 7, 2010, when a

17–year–old girl went missing from the
Norwalk home of her grandparents. Sometime after the girl's disappearance,
police began to suspect that her 20–year–old boyfriend, . . . Robert Young, was
harboring her or knew where she was. [Young] denied such knowledge, but police
remained suspicious.

State v. Young, supra.

On June 9, 2010,

without [Young’s] consent or review by
a judge or magistrate, police obtained [his] cell phone records from his
carrier, Verizon Wireless, by submitting a single page Emergency Request Form.

Police also obtained the 17–year–old
girl's cell phone records with the consent of her mother. The records acquired
contained, not only the numbers that had been called, but also the content of
the text messages that had been exchanged.

The
17 year old was eventually found living in an apartment rented by [Young]. She
had not been held against her will. The girl was returned to her parents.

State v. Young, supra.

The police charged Young with “with obstructing official
business, a second degree misdemeanor.”State v. Young, supra.He pled not guilty and moved to suppress the
cell phone records the police had obtained without a warrant.State
v. Young, supra.The trial judge
held a hearing on Young’s motion to suppress, at which the

investigating officer testified that
the records had been obtained without a warrant and that, at the time the
records were requested, although police has strong suspicions, he did not
believe police had probable cause to obtain a warrant.

Moreover, the officer testified, at the
time he did not believe a warrant was needed where an Emergency Request Form was used. A subpoena for the records
issued only after [Young] was charged.

State v. Young, supra.

Young had some success with his motion to suppress.The trial judge sustained his

motion, in part. The court concluded
that [Young] had a reasonable expectation of privacy in the content of his text
messages even though those messages were maintained in records held by a third
party, his cell phone provider.

As a result, the police had no right to
obtain these records absent [Young’s] consent, a warrant issued on probable
cause or a recognized exception to a warrant requirement. Since no warrant had
been obtained, the court suppressed the text messages that had been produced by
[Young’s] cell provider.

State v. Young, supra.

(If you’re not familiar with the use of "emergency letters" and how the 4th
Amendment works, and does not work, in the context of records – cell phone
records, utility records, etc. – held by third parties, you might want to check
out this blog post, which surveys the state of the law in this area. You can also read more about it in the article
you can find here.)

The judge also, however, denied Young’s motion to suppress,
in part:

The court refused . . . to suppress
messages [Young] had sent to the 17 year-old's cell phone that had been acquired
with the consent of her mother from the girl's cell phone provider. These, the
court ruled, could be used in evidence.

State v. Young, supra.

Young then pled “no contest” and was found “guilty as
charged”.State v. Young, supra.The
judge “fined him $200” and sentenced Young “to jail for 90 days, 60 suspended,
and two years of probation.”State v. Young, supra.As I noted earlier, he appealed, challenging
the partial denial of his motion to suppress.State v. Young, supra.

The Court of Appeals began its analysis of Young’s argument
that the “seizure” of the messages he sent to the girl was an “unreasonable”
seizure that violated the 4th Amendment:

The 4th Amendment and the OhioConstitution, Article I, Section 14, guarantee that individuals be free from
unreasonable searches and seizures. Evidence obtained in violation of this
guarantee must be excluded from introduction in any criminal trial. . . . Searches
conducted without a probable cause based warrant are per se unreasonable,
subject to only a few specifically established and well-defined
exceptions.

State v. Young, supra.

As I’ve noted in earlier posts, the same principle applies
to searches and seizures, i.e., either is “unreasonable” and violates the 4th
Amendment if it is not conducted pursuant to a warrant or an exception to the
warrant requirement. As noted above, the opinion says Young was arguing that
the police’s obtaining the messages was a 4th Amendment “seizure,”
but the rest of the opinion focuses on his argument that the police’s obtaining
them violated his 4th Amendment right to privacy.State
v. Young, supra.

As I’ve explained in earlier posts, a “search” violates a
“reasonable expectation of privacy” under the Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967).And as I’ve also noted, to have a reasonable,
Katz expectation of privacy in a
place or thing, I must personally believe that place or thing is “private” and
society must accept my belief as objectively reasonable

So if someone is walking around an airport terminal talking
loudly on a cell phone and planning a crime, he/she may personally believe the
conversation is private (however unrealistic that may seem) but a court would
find that that belief, it if existed, was objectively unreasonable, which means
it wouldn’t be a search for a police officer to listen to the conversation and
use it as probable cause to obtain a search/arrest warrant.

That brings us back to the Court of Appeals and Mr.
Young.The court next explained that

There are limits on who may assert the
right to suppress evidence obtained in violation of the Fourth Amendment. `[S]uppression
of the product of a 4th Amendment violation can be successfully urged only by
those whose rights were violated by the search itself[.]' Alderman v. U.S.,394 U.S. 165 (1969). `Fourth Amendment rights are personal in nature and
may not be vicariously asserted by others.’ State v. Dennis, 79
Ohio St.3d 421, 683 N.E.2d 1096 (1997).

`A person who is aggrieved by an illegal
search and seizure only through the introduction of damaging evidence secured
by a search of a third person's premises or property has not had any of his Fourth
Amendment rights infringed.’ Rakas v. Illinois, 439 U.S. 128 (1978).

For
a person to have been aggrieved by an unlawful search or seizure, he or she ‘“‘must
have been a victim of a search or seizure, one against whom the search was
directed, as distinguished from one who claims prejudice only through the use
of evidence gathered as a consequence of a search or seizure directed at
someone else.’“’ Alderman v. United States, supra (quoting Jones
v. U.S., 362 U.S. 257 (1960)). `We adhere to these cases and to the
general rule that Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.’ Id. at
174.

State v. Young, supra.In other words, I can’t successfully move to
suppress evidence that was obtained in violation (only) of your 4th
Amendment rights.

The Court of Appeals then addressed the significance of this
issue in the context of the Young prosecution.It began by noting that Young

raises many interesting, and perhaps
novel, questions about the nature of the privacy expectations of text messages
stored by third parties. Nonetheless, the trial court suppressed the evidence
that was obtained from [Young]'s cell phone provider.

The issue is whether the records
obtained from [his 17–year–old girlfriend's cell phone provider, with the
consent of her mother, should be excluded.

State v. Young, supra.I wish I could tell you what those questions
are, but I don’t have access to the appellate briefs in this case and the
opinion doesn’t provide any more information on what they were.

The Court of Appeals went on to note that the

parties engage in considerable argument
as to whom the girlfriend's cell phone belonged, whether a minor can contract
and whether a minor's mother can consent in circumstances like these. None of
these issues is dispositive, because [Young] was not the aggrieved party.

Suppression might be an issue if the
information obtained from the girlfriend's cell phone provider were to be
offered against the girlfriend. In such an instance, she could raise the issue.
But [Young] has put forth nothing that would establish that he had any
reasonable privacy expectation in his girlfriend's phone records.

State v. Young, supra.

The Court of Appeals held that since Young’s 4th
Amendment rights were not violated by the police’s obtaining messages from his
girlfriend’s cell phone provider, the trial judge did not err in denying his
motion to suppress that evidence.State v. Young, supra.It therefore affirmed the judgment, and
sentence, of the lower court. State v.
Young, supra.

(The photo, in case you’re wondering, is of Norwalk, Ohio,
which is where this case arose.)

Nguyen argued that because the
search warrant that led to the discovery of evidence used against him in the
prosecution was not supported by probable cause, the district court judge
should have granted his motion to suppress.
U.S. v. Tan Duc Nguyen, supra.

This, according to the opinion, is how the prosecution
arose:

Beginning on October 11, 2006, Mailing
Pros, Inc., a mass mailing service, mailed approximately 14,000 letters, on
behalf of a customer known as `Mark Lam,’ to individuals on a mailing list
comprised of `newly registered voters with Hispanic surnames . . . who were born
outside of the United States’ and had registered as Democrats or `decline to
state.’ The letter was written in Spanish and, among other things, advised
recipients `there is no incentive for voting in this country.’

They were informed that if they voted
in the upcoming election . . .their personal information would be collected by
a newly implemented government computer system, and organizations that were
`against immigration’ might request information from this system. The letter also encouraged
citizens to `participate in the democratic process of voting,’ but warned those
who `are in this country illegally or [are] legal resident[s]’ that `voting in
a federal election is a crime’ that could result in incarceration and
deportation.

The California Attorney General's office
began an investigation . . . after receiving complaints regarding this letter.
. . . [It] ultimately led agents to Tan Nguyen, the Republican candidate for U.S.
Congress in the 47th District of California. Nguyen was running against the
Democratic incumbent, Loretta Sanchez, a Latina who had strong support in the
Hispanic community.

U.S. v. Tan Duc
Nguyen, supra.

Agents from the
California Attorney General's office interviewed Nguyen on October 19, 2006. U.S. v. Tan Duc Nguyen, supra. He admitted “having limited knowledge of the
letter prior to its mailing, “ but said he believed “it was created and
distributed by an acquaintance, Mark Nguyen, also known as `Mark Lam,’ and sent
independently from the campaign. U.S. v.
Tan Duc Nguyen, supra. Shannon Williams, the agent in charge, did not
believe Nguyen's account of the letter and sought a warrant to search his home
and campaign headquarters. U.S. v. Tan
Duc Nguyen, supra.

In the affidavit supporting the application for the warrant,
Williams stated that “`there existed a conspiracy or agreement between [ ]
Nguyen, Mark Nguyen and perhaps other [sic] to draft, produce and mail out
letters to the targeted Orange County voters to benefit [ ] Nguyen's
Congressional campaign by discouraging a discreet [sic] and perceived
vulnerable set of potential voters who would be expected to favor his
Democratic opponent in the upcoming election.’” U.S. v. Tan Duc Nguyen, supra.
The affidavit included a number of facts that linked Nguyen and his
campaign to the letter. U.S. v. Tan Duc
Nguyen, supra. The facts alleged in the affidavit included a statement from
the

proprietor of Mailing Pros, who
received a call from Nguyen asking the company to expedite the mailing job for
customer Mark Lam. [It] also included a statement from an employee of the
company that provided the targeted mailing list used, informing agents the list
had been requested by Nguyen.

The affidavit noted the agent had been advised by
. . . the Attorney General's office that the letter `could constitute a
violation of [California] Election Code §§ 18540, use of threats to influence
voting, 18502, interference with an election, and 18543, challenging a person's
right to vote.’ Attached to [it] was a copy of an email exchange from September
2006 produced by Nguyen in which he discussed the contents of the letter with
campaign supporter Roger Rudman and an English-language translation of the
letter received by the targeted voters.

U.S. v. Tan Duc
Nguyen, supra.

The state court magistrate issued the warrant, state agents
searched Nguyen’s home and campaign headquarters, “seized documents and
computers, and found emails showing greater involvement by [him] in the
drafting and mailing of the letter than he had previously acknowledged.” U.S.
v. Tan Duc Nguyen, supra.
Ultimately, the state did not file charges; in a May, 2007 press
release, the California Attorney General said the state did not intend to
prosecute Nguyen. U.S. v. Tan Duc Nguyen, supra.

In October of 2007, after “the election took place and
Nguyen lost his bid to unseat Sanchez, a federal investigation was” opened. U.S. v. Tan Duc Nguyen, supra. Federal agents did not find “any new
information or evidence related to the sending of the letter” and neither
Nguyen nor “any of his associates” were charged with violating federal election
law. U.S. v. Tan Duc Nguyen, supra. Nguyen was, as noted above, charged with
obstruction of justice in violation of 18 U.S. Code § 1512(b)(3), for failing
to “disclose to state agents the full extent of his knowledge regarding the
creation and mailing of the letter at issue.” U.S. v. Tan Duc Nguyen, supra.

Section 1512(b)(3) makes it a federal crime to “hinder,
delay, or prevent the communication to a [federal] law enforcement officer . .
. of the United States of information relating to the commission or possible commission
of a Federal offense”. Federal
authorities claimed Nguyen “`tried to hinder or prevent information from
getting to sources that may ultimately turn out to be a federal investigation
[for voter intimidationunder
federal law].’” U.S. v. Tan Duc Nguyen,
supra.

Nguyen didn’t challenge the charge on appeal; instead, he claimed
the warrant that led to evidence that was used against him was not based on
probable cause. U.S. v. Tan Duc Nguyen, supra.
If that was true, it would mean the evidence should have been suppressed
which, I’m guessing, would have made it difficult or even impossible for
prosecutors to have obtained a conviction.
U.S. v. Tan Duc Nguyen, supra.

The Court of Appeals began its analysis of his argument by
noting that a warrant is “validly issued if there is a substantial basis for the
magistrate's conclusion that `given all the circumstances set forth in the
affidavit. . . there is a fair probability that . . . evidence of a crime will
be found in a particular place.’” U.S. v.
Tan Duc Nguyen, supra (quoting Illinois v. Gates, 462 U.S. 213 (1983)). Nugyen
did not claim the magistrate “lacked a sufficient basis to conclude evidence
pertaining to the creation and mailing of the letter could be found at his home
and campaign headquarters.” U.S. v. Tan Duc Nguyen, supra. He argued
that mailing the letter “did not amount to a violation of any law, and,
consequently, could not provide a substantial basis for concluding there was
probable cause to believe a crime had been committed.” U.S. v.
Tan Duc Nguyen, supra.

The Court of Appeals then pointed out that in her
application for the warrant, Williams “sought no more than evidence that would
connect Nguyen to the mailing of the letter, and did not suggest evidence of
further criminal activity could be found in the locations to be searched.” U.S. v.
Tan Duc Nguyen, supra. It noted that
the warrant “related only to the letter” and authorized agents to “search for
evidence related to the mailing of a letter `advising the addressee that it is
illegal for a resident illegally in the country to vote.’” U.S. v. Tan Duc Nguyen, supra.
It found that since mailing the letter was “the only act alleged to have
constituted a crime,” the probable cause determination had to be based on the “purported
illegality” of the letter. U.S. v. Tan
Duc Nguyen, supra. If the letter “combined
with the circumstances of its mailing as described to the magistrate clearly
did not amount to a violation of the law, there was no probable cause, and the
warrant was invalid.” U.S. v. Tan Duc Nguyen, supra.

In her affidavit, Agent Williams “listed three provisions
she believed the letter `could’ have violated: California Election Code §§18502, 18543,
and 18540.” U.S. v.
Tan Duc Nguyen, supra. Section 18502
makes it a crime to interfere with “officers holding an election or conducting
a canvass, or with the voters lawfully exercising their rights of voting at an
election.” U.S. v. Tan Duc Nguyen, supra.
The Court of Appeals found that since mailing a letter “weeks prior to
an election” could not have interfered either with officers holding an election
or with voters exercising their rights at an election, mailing this letter “could
not have constituted a violation of this statute, and thus could not provide
probable cause” for issuing the warrant. U.S. v.
Tan Duc Nguyen, supra.

Section 18543 makes it a felony to conspire to “fraudulently
advise[ ] any person that he or she is not eligible to vote . . . when in fact
that person is eligible.” U.S. v.
Tan Duc Nguyen, supra. The Court of Appeals noted that (i) the “plain
language of the statute criminalizes advising eligible voters
that they are not eligible to vote” and (ii) “[o]nly United States citizens are
eligible to vote.” U.S. v. Tan Duc
Nguyen, supra (citing California Constitution Article 2 § 2). And it explained that the letter at issue
here

expressly states that `[i]f you are a
citizen of the United States, you are kindly asked to participate in the democratic
process of voting.’ It goes on to state that those illegally in the country or
`legal residents’ cannot legally vote and may be subject to incarceration and
deportation. Because only U.S. citizens may vote, the letter does not
`fraudulently advise’ any eligible voter that he or she is ineligible to vote,
as required to violate § 18543. There is therefore no basis for concluding
that the letter violated §18543, and . . . no basis for concluding there is a
fair probability that the facts alleged in the affidavit constituted a
violation of this statute.

U.S. v. Tan Duc
Nguyen, supra.

The court then examined the third provision: California Election Code § 18540, which makes
it a felony to “use any `tactic of coercion or intimidation, to induce or compel
any other person to refrain . . . from voting.’” U.S. v. Tan Duc Nguyen, supra.
It noted that in Hardeman v. Thomas,
208 Cal. App.3d 153, 256 Cal. Rptr. 158 (1989), the California Court of Appeals
held that the type of intimidation § 18540 encompasses “is not limited to
displays or applications of force, but can be achieved through manipulation and
suggestion.” U.S. v. Tan Duc Nguyen, supra.

The court pointed out that the letter in this case (i) was
sent to “foreign-born individuals with Hispanic surnames—that is, those believed
to be Latino immigrants”; (ii) was mailed by “individuals associated with a Republican
congressional candidate” and (iii) was sent “specifically to voters who
registered as Democrats or declined to state their party affiliation.” U.S. v. Tan Duc Nguyen, supra.

The
intended recipients, therefore, were “individuals
who, as the affidavit stated, “`would be expected to favor [Nguyen's]
Democratic opponent in the upcoming election.’” U.S. v. Tan Duc Nguyen, supra. The Court of Appeals found that the
“contents of the letter and the circumstances of its distribution” were enough
to allow the state magistrate to find there was probable cause to believe that
the mailing constituted a violation of § 18540 because the letter targeted

immigrant voters with threats that their personal information
would be provided to anti-immigration groups if they exercised their right to
vote, and was mailed by a campaign with a vested interest in inducing these
voters -- members of the competing political party and of a minority group supporting
the opposing candidate -- not to vote in the upcoming election.

U.S. v. Tan Duc
Nguyen, supra.

The court also found that the lack of a state prosecution
did not undermine the existence of probable cause to believe § 18540 had been
violated:

Upon further investigation, the state may have determined
Nguyen lacked the necessary scienter to violate the statute .
. . or . . .was not sufficiently involved with the letter's creation and
mailing to justify prosecution. Even if the state believed Nguyen's conduct did
satisfy the elements of the statute, the Attorney General's office may have had
any number of reasons for electing not to prosecute the former candidate,
including its exercise of prosecutorial discretion. The absence of a state
prosecution does not signify that Nguyen's conduct did not amount to a
violation of the law. . . . There was . . . sufficient probable cause to
support the issuance of the warrant to search Nguyen's home and campaign
headquarters.

U.S. v. Tan Duc
Nguyen, supra.

The Court of Appeals therefore affirmed Nguyen’s conviction
and his sentence of “twelve months and one day in prison.” U.S. v.
Tan Duc Nguyen, supra.